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The Role and Impact of Soft Law on the Emergence of the Prohibition of Violence against Women within the Context of the CEDAW

Ekaterina Yahyaoui Krivenko

Introduction

Despite the absence of an explicit legal provision, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)1 is commonly understood and interpreted as integrating a prohibition of violence against women.2 Therefore, there is a contradiction inherent in the absence of any recognition of the issue of violence against women as a human right in a binding instrument and the broad belief in the acceptance of it as a part of established human rights law. In the absence of a binding instrument, the question of the status of prohibition of violence against women in human rights law becomes central. Arguably, the prohibition of violence against women as a human rights issue has undergone a significant change since the time of the adoption of the CEDAW. The role of the CEDAW Committee in this process cannot be denied. In this context, it is important to enquire about the role of soft law as well as tactics and mechanisms used by the CEDAW Committee that allowed for such a smooth and almost invisible sliding of the prohibition of violence against women into the realm of recognized human rights obligations. The continuing impact of the soft law on human rights development in this area is equally important. Relatedly, investigating these issues will also shed new light on the nature of soft law itself.

1 Convention on the Elimination of All Forms of Discrimination against Women (New York, 18

Dec. 1979, 1249 UNTS 13).

2 Defining violence against women is a difficult task. Preliminarily, violence against women can be defined as ‘violence that is directed against a woman because she is a woman or that affects women disproportionately’, General Recommendation 19: Violence against Women, 11th Session, 1992, Contained in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, HRI/GEN/1/Rev.9, vol. 2 (27 May 2008): 331, para. 6. For a more detailed discussion of the definition, see section 2.1 of this chapter.

Stephanie Lagoutte, Thomas Gammeltoft-Hansen, and John Cerone. © Stephanie Lagoutte, Thomas Gammeltoft- Hansen, and John Cerone 2016. Published 2016 by Oxford University Press.

The CEDAW does not contain any provision addressing violence against women despite lobbying by some NGOs and governments during the drafting process. Initially, the issue of violence against women was addressed in the CEDAW General Recommendation 12 adopted in 1989,[1] General Recommendation 19 of 1992,[2] [3] and subsequently in the famous General Assembly (GA) Declaration on the Elimination of Violence against Women (DEVAW) of 20 December 1993.5 In the jurisprudence of the CEDAW Committee and its concluding observations, the Committee addressed the issue of violence against women from the very beginning of its activities despite the apparent lack of an express legal provision allowing it to do so.

Focusing on the issue of violence against women and on the particular approach chosen by the CEDAW Committee to address this issue, this contribution will explore the development of the prohibition of violence against women from nonlaw (recognition of violence against women as a societal problem)[4] to soft law (understood here as a normative statement with some degree of traction),[5] on the one hand, and from soft law to hard law, on the other.

  • [1] General Recommendation 12: Violence against Women, 8 th Session, 1989, Contained inInternational Human Rights Instruments. Compilation of General Comments: 324.
  • [2] General Recommendation 19: Violence against Women, 11th Session, 1992, Contained inCompilation of General Comments and General Recommendations Adopted by Human Rights TreatyBodies, HRI/GEN/ 1/Rev.9, vol. 2 (27 May 2008).
  • [3] Adopted by UN GA Resolution 48/104 of 20 Dec. 1993, A/RES/48/104.
  • [4] I would like to emphasize that the term ‘non-law’ is used here in its commonsense meaning: recognizing a societal problem and addressing it without using any legal tools. Of course, it would beinteresting to see how this exclusion of violence against women from legal regulation plays out againstthe theories of non-legality. However, the author believes, this is better done within the framework of aseparate article. For conceptualization of non-legality in international law in general, see e.g.: F. Johns,Non-Legality in International Law (Cambridge: Cambridge University Press, 2013).
  • [5] The definition of soft law that this chapter adopts is in line with the view presented by the editorsin the introduction to this volume. In addition, this chapter also refers to the nature of the instrumentin some instances where the legal status of the instrument influences the soft or hard law nature of aparticular normative statement and the degree of traction that it attracts.
 
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